Immigration and Customs Enforcement Acting Director Thomas Homan appears to be making good on his promise to ramp up work-site enforcement even as he heads toward a June retirement.

Homan said last fall that he planned to increase immigration enforcement in the workplace to four or five times its existing levels. “I think that clearly is starting to take place,” Dallas immigration attorney Richard Gump told Bloomberg Law May 3. Homan announced his upcoming retirement on April 30.

Employers are starting to see the results of a new way the agency is applying its fine matrix to audits of I-9 employment verification forms. Under the Immigration Reform and Control Act, employers must complete the forms for all employees to ensure that they’re authorized to work in the U.S.

“The application of those higher fines,” which came out in January, “is only now coming into fruition because of the time it takes for an I-9 audit from beginning to end,” Amy Peck of Jackson Lewis in Omaha, Neb., told Bloomberg Law May 2.

ICE only counts one violation per I-9 form for purposes of fines and violations, even if a form has multiple violations, agency spokeswoman Danielle Bennett told Bloomberg Law May 3.

‘Violation Percentage’

ICE calculates penalties by dividing the number of violations by the total number of employees to reach a “violation percentage,” according to an agency fact sheet. The penalties, which range from $220 to $2,191 per violation, go up depending on whether it’s a first, second, or third offense.

The fact sheet makes it appear that violation percentages are calculated separately depending on whether you’re talking about an I-9 violation—such as failing to properly complete a section of the form—or to knowingly hiring and/or continuing to employ an unauthorized immigrant. But in practice, ICE is combining the two types of offenses to reach a higher percentage and impose a higher fine.

A practice pointer prepared for the American Immigration Lawyers Association laid out an example.

A 100-employee company with 10 I-9 violations and 20 improper employment violations would have a 10 percent violation percentage for the I-9 violations and a 20 percent violation percentage for the hiring violations. Calculated separately, that would result in a fine of $40,560 for a first offense.

But adding 10 I-9 violations to 20 improper hiring violations results in a 30 percent violation percentage for each. In that case, the fine comes up to $60,270 for a first offense.

The calculation only affects employers with some of each type of violation, said Gump, one of the authors of the pointer. But “it makes a huge difference” for employers that may have multiple I-9 violations but only a small number of hiring violations, he said.

Slow Start

ICE’s work-site enforcement efforts were “slow to get started” because of agency bureaucracy, Mark Krikorian, executive director of the Center for Immigration Studies, told Bloomberg Law May 1. The enforcement strategy of ICE’s Homeland Security Investigations—the division in charge of work-site enforcement—has been dominated by customs work, he said.

But “that seems to be shifting,” Krikorian said, adding that he expects the shift to continue even after Homan leaves the agency. The center supports lower immigration levels.

Homan has made few public statements on immigration and employment, focusing mainly on criticizing “sanctuary cities” and reordering ICE’s enforcement priorities.

Krikorian said he would have liked more “high-profile warnings to employers” that “we’re coming after you.”

It wasn’t until a Heritage Foundation event in November that Homan announced his plans to increase work-site enforcement. Since then, ICE has conducted high-profile raids at 7-Eleven stores nationwide and at a meatpacking plant in Bean Station, Tenn. The agency has also announced some large-scale audits of employers’ I-9 employment verification forms in San Francisco and Los Angeles.

But ICE “has been very active in the work-site enforcement area,” Washington, D.C., immigration attorney Allen Orr told Bloomberg Law May 1. It’s just been “overshadowed” by publicity over raids in immigrant communities and illegal border crossings, he said.

Employers Involved in Raids

For one thing, employers are “part of the raids,” said Orr, who serves as treasurer of the American Immigration Lawyers Association. Many undocumented immigrants who are apprehended in the raids are taken into ICE custody at their workplaces, he said.

ICE also is arresting workers as part of I-9 audits, Gump said.

When the agency reviews I-9 forms, it hands the employer a “notice of suspect documents” that lists employees whose proof of work authorization is questionable. ICE used to tell employers to fire those workers if they couldn’t prove authorization, and that was the end of it, Gump said.

Now Gump has clients where ICE has asked that the employees listed on the notice be present when agents return—and those employees are arrested, he said.

‘Lot of Unknowns’

The ICE fact sheet is open to interpretation and leaves some things unclear, Jackson Lewis’ Peck said. “There’s a lot of unknowns about how this fine schedule will be applied in practice,” and it doesn’t appear that it’s being “applied consistently throughout the different ICE jurisdictions,” she said.

ICE says the fines apply to penalties that are assessed after Jan. 27, 2017, and for violations that occurred after Nov. 2, 2015. But it’s unclear what happens when there’s a continuing violation that started before that date, Peck said.

It’s also unclear what counts as a first, second, or third offense, she said.

Generally an offense would be a substantive violation or an uncorrected technical violation on an I-9 form, the ICE spokeswoman told Bloomberg Law. It also would be knowingly hiring or continuing to employ an unauthorized worker, she said. She didn’t say whether the employer would have to be fined or be subject to a formal order for the violation to count as an “offense” for purposes of a higher fine.

How ICE calculates a second or third offense, as well as its calculation of the violation percentage, likely will end up before the Justice Department’s Office of the Chief Administrative Hearing Officer, Gump said. “The legal and practical issue is: Is this fine within the statutory framework?” he said.

The fine matrices already are problematic, but the new percentage calculation “really takes it over the top,” Gump said. “I can’t imagine that they would rule in favor of ICE,” he said.

So far there hasn’t been an employer willing to spend the money to make that challenge.

Employers almost always wind up paying something, so the question is whether they’re willing to reach a settlement with ICE or pay the legal fees to get the fine reduced by an administrative law judge, Orr said. “In most cases, for my clients, reaching the settlement is much cheaper,” he said.